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Asleep on the Job – Overnight in the Care Sector

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Asleep on the Job? Should those within the care sector who are expected to ‘be present’ overnight at their place of work, be paid the National Minimum Wage (NMW)? rhw Solicitors look at two key cases in this specific area which is causing concern amongst care providers.

There have been various key legal cases focusing on the matter of ‘remuneration’ for sleepovers and overnight periods, which are interesting in that they have tended to provide little overall clarity and decisions reached have been very subjective and case specific. In this article, we look at two specific key legal cases.

Shannon was employed as an on-call night care assistant at a residential care home for the elderly where he was provided with a flat on-site. He was required to be in his flat from 10pm until 7am, as effectively on call (though call-outs were very rare) so he was able to sleep during those hours.

Shannon had free accommodation together with a payment of £50 per week, rising eventually to £90 per week, which still constituted considerably less than the NMW. The claim brought by Shannon was for £239,490: this being the NaAtional Minimum Wage since the legislation came into force with specific application to his full nightly on-call hours.

The EAT found that Shannon was not working throughout each night shift and was only entitled to receive the NMW for times when he was awake for the purposes of working. Additionally, the EAT attached weight to the fact that Shannon’s presence throughout the night shift was not necessary in order for the home to comply with a statutory obligation, as there was another night-worker on duty.

This decision should not be taken to mean that employers of sleep-in workers do not necessarily have to pay sleep-in workers the minimum wage for their whole night shift however the fact that his overnight ‘place of work’ was also his home was a key factor in the end decision.

Mrs Whittlestone was employed as a care worker. She was paid £6.35 per hour when providing care to a service user. She also undertook sleepover shifts, during which she was required to be present at a service user’s home between the hours of 11pm and 7am. She was paid a flat rate of £40 for sleepovers. Like the Shannon case, there was little evidence that Mrs Whittlestone ever had to provide active care during her sleepover shifts.

The claim made was that she should be paid the National Minimum Wage (“NMW”) for all hours worked, including sleepover hours. In this particular case, the Employment Appeal Tribunal agreed that she should be paid.

The EAT held that the entire sleepover shift was “working time” for the purposes of the National Minimum Wage Regulations 1999. The EAT observed that there was an agreement in place with the care provider that the employee would work and that had Mrs Whittlestone not been present at any time during a sleepover shift, she would have been disciplined. The key point was that it was her job to be at the service user’s home and for that reason, she was entitled to be paid the NMW for the duration of her shift.

So, why the difference in the two case outcomes? It is partially to do with the specific assessment of ‘being on call’ and what is regarded as ‘non-working time’ and the freedom to use that time for non-work related activities.

To expand on this further, Mrs Whittlestone’s duty during the sleepover shift was to be physically present at the service user’s home. Her activities during sleepover hours were limited by location and specific obligations. Basically, she was not in her own surroundings/home, so her ability to use the overnight period as anything but as an on-site, ‘on-call’ work period was extremely limited.

For many Care Providers, there are going to be substantial grey areas between the two case results and various other legal challenges have not helped provide definitive clarification on the whole matter. Paying a flat rate for sleepovers remains a common practice within the care industry. However, if carers are paid little more than the NMW for non-sleepover hours worked, paying a low flat rate for long sleepovers may result in them being paid less than the National Minimum Wage.

The increase in fines for failing to pay the NMW is sure to concentrate minds over this particular area and the new policy of naming and shaming businesses that breach their obligations is making it ever more important for care providers to review and possibly change working practices to avoid getting caught out.

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